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Definition and legal basis:
Management without mandate (GoA) is a legal obligation that is regulated in Sections 677-687 of the German Civil Code (BGB). It exists when someone (the managing director) carries out a transaction for another (the principal) without being commissioned or otherwise authorized to do so. The GoA serves as a catch-all provision for situations in which someone acts in the interest of another without a contractual basis.
Key Facts
- Management without an order (GoA) is regulated in the German Civil Code (BGB) in Sections 677-687.
- The existence of GoA requires the provision of business services, third-party ownership and third-party management intent.
- There is justified and unjustified GoA, as well as erroneous and presumptuous self-management.
- The legal consequences of the GoA vary depending on the entitlement, including reimbursement of expenses and claims for restitution.
- The GoA has practical relevance in emergency situations, care and repairs.
- Current developments in case law concern digital services and unjust enrichment law.
- The GoA remains an important legal institution for unauthorized activities in the interests of others.
Requirements of the GoA:
1. agency: Any actual, legal or similar activity in the interest of another.
2. third-party nature of the transaction: The transaction must at least also be third-party, i.e. fall within the legal or interest sphere of another party.
3. will to manage a third-party business: The managing director must act with the will to manage a third-party business.
4. lack of mandate or other authorization: There must be no contractual or legal obligation to manage the company.
Types of GoA:
1. authorized GoA (§§ 677, 683, 670 BGB): The assumption of the management corresponds to the interest and the real or presumed will of the principal.
2. unauthorized GoA (§ 684 BGB): The assumption of the management contradicts the interest or the will of the principal.
3. erroneous management of own business (Section 687 (1) BGB): The managing director mistakenly considers a third-party transaction to be his own.
4. presumptuous own management (§ 687 para. 2 BGB): The managing director knows that the transaction is external, but treats it as his own.
Legal consequences:
– In the case of justified GoA: claim of the managing director for reimbursement of expenses (Sections 683, 670 BGB) and release from liabilities incurred.
– In the case of unauthorized GoA: Enrichment claims of the principal (§ 684 BGB).
– In the case of presumptuous own management: claims for restitution by the principal (Section 687 (2) BGB).
Practical significance:
The GoA is used in various areas of life, e.g:
– Assistance in emergency situations
– Looking after other people’s affairs in their absence
– Carrying out repairs to third-party property
– Payment of third-party debts
Delimitation:
The GoA is to be distinguished from:
– Contractual obligations (in particular contracts and agency)
– Enrichment law (§§ 812 ff. BGB)
– Negotiorum gestio in Roman law (historical predecessor)
Current developments:
Case law is constantly developing the application of the GoA, particularly with regard to:
– Differentiation from contractual agency
– Application in the area of digital services
– Relationship to the right to enrichment in the event of unauthorized management
The GoA remains an important legal institution for regulating situations in which someone acts in the interests of another without a contractual basis. Its flexible application makes it possible to find solutions that are in the best interests of the parties in a wide range of situations.
